Opinion
CRIMINAL ACTION NO. 01-071 SECTION "R"
April 7, 2004
ORDER AND REASONS
Before the Court is petitioner Donald Reaux's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. For the following reasons, the Court denies petitioner's motion.
I. BACKGROUND
On August 1, 2001, a jury found Reaux guilty of bank robbery and use of a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 2113(a) and § 924(c)(1)% The Court sentenced Reaux to consecutive sentences of 57 months on the bank robbery charge and 84 months on the firearm charge.
In November 2001, petitioner filed a timely notice of appeal. In November 2002, the Fifth Circuit Court of Appeals affirmed petitioner's convictions. See United States v. Reaux, No. 01-31379 (5th Cir. Nov. 13, 2002). The Supreme Court denied Reaux's petition for writ of certiorari on March 31, 2003. Petitioner now moves the Court to vacate, set aside, or correct his sentence.
II. DISCUSSION
A. Procedural Bar
In his petition, Reaux identifies four grounds for relief: Ineffective assistance of counsel, a grand jury violation, prosecutorial misconduct, and a due process violation. In his memorandum in support of his motion, petitioner further elaborates on these assignments of error. He contends that the grand jury array was defective, that the indictment was defective, that his two — level sentencing enhancement was improper, that his right to effective assistance of counsel was violated, and that the prosecutor engaged in misconduct.
The Fifth Circuit has explicitly held that a defendant "may not raise an issue constitutional or jurisdictional in nature for the first time on collateral review without showing both `cause' for his procedural default, and `actual prejudice' resulting from the error." United States v. Segler, 37 F.3d 1131, 1133 (5th Cir. 1994) (quoting United States v. Shaid, 937 F.2d 228, 232 (5th Cir. 1991)); see also Massaro v. United States, 123 S.Ct. 1690, 1693 (2003). If a defendant cannot establish cause and prejudice, he may be entitled to relief under Section 2255 in the extraordinary case in which a constitutional violation has "probably resulted in the conviction of one who is actually innocent." See Shaid, 937 F.2d at 232 (quoting Murray v. Carrier, 477 U.S. 478, 496 (1986)). If the error is not of a constitutional or jurisdictional nature, then the petitioner must show that the error could not have been raised on direct appeal and, if not corrected, would result in a complete miscarriage of justice. See id. at 232, n. 7.
In addition, the Supreme Court recently recognized an exception for ineffective assistance of counsel claims to the general rule that claims not raised on direct appeal may not be raised on collateral review absent a showing of cause and prejudice. See Massaro, 123 S.Ct. at 1693-4. The Massaro Court concluded that, based on equitable and efficiency considerations, the "better — reasoned approach is to permit ineffective — assistance claims to be brought in the first instance in a timely motion in the district court under § 2255." Id. at 1694.
Petitioner asserts several bases for his ineffective assistance of trial counsel claim. In light of the Supreme Court's holding in Massaro, this claim is properly raised in petitioner's Section 2255 motion, and the Court considers the merits of the claim below. A review of his brief before the Court of Appeals reveals that petitioner did not raise his claims of a defective grand jury array, a defective indictment, prosecutorial misconduct, or an improper sentencing enhancement. Petitioner does not assert that he is actually innocent of the crimes charged, and the Court therefore considers whether he establishes both cause and prejudice with respect to his failure to raise these claims. Petitioner offers no reason why his claims based on the grand jury array, the indictment, or prosecutorial misconduct were not raised on direct appeal. The Court therefore finds that petitioner fails to demonstrate cause for his default on these claims. On his claim based on the sentencing enhancement, on the other hand, Reaux asserts that his appellate counsel failed to present his objection to the enhancement on appeal, and this failure constitutes ineffective assistance of appellate counsel. The Fifth Circuit has recognized that ineffective assistance of appellate counsel may satisfy the cause and prejudice standard. See Harrelson v. United States, 967 F. Supp. 909, 914 (W.D.Tex. 1997) (citing cases). The Court therefore considers below whether petitioner's appellate counsel assistance was ineffective in light of her failure to raise an objection to the sentencing enhancement for obstruction of justice.
B. Ineffective Assistance of Counsel
To establish a claim of constitutionally ineffective assistance of counsel, petitioner must show both (1) that counsel's performance fell below an objective standard of reasonableness, and (2) that but for counsel's deficient performance, the likely outcome of the proceeding would have been different. See Strickland v. Washington, 466 U.S. 668, 687-96 (1984). Petitioner must meet both prongs of the Strickland test and, if the Court finds that petitioner has made an insufficient showing as to either prong, the Court may dispose of the claim without addressing the other prong. See id. at 697. The Fifth Circuit has held that trial counsel's performance must be compared to "an objective standard of reasonableness, mindful of the strong presumption of adequacy." Green v. Johnson, 116 F.3d 1115, 1122 (5th Cir. 1997). A district court should not "find inadequate representation merely because, with the benefit of hindsight," the court disagrees with trial counsel's strategic choices. Id. The Fifth Circuit has made it clear the "[a] conscious and informed decision on trial tactics and strategy cannot be the basis for constitutionally ineffective assistance of counsel unless it is so ill chosen that it permeated the entire trial with obvious unfairness." Id. (citing Garland v. Maggio, 717 F.2d 199, 206 (5th Cir. 1983) (on rehearing)); see also Cotton v. Cockrell, 343 F.3d 746, 752-53 (5th Cir. 2003). With these principles in mind, the Court considers plaintiff's allegations of ineffective assistance of appellate and trial counsel. 1. Appellate Counsel
Petitioner contends that his appellate counsel should have objected to his sentencing enhancement for obstruction of justice. Appellate counsel is under no obligation to raise every nonfrivolous ground of appeal. See U.5. v. Williamson, 183 F.3d 458, 462 (5th Cir. 1999). It is within the appellate counsel's sound discretion to abandon any losing issues on appeal. Id. Thus, to determine whether petitioner's appellate counsel was deficient, the Court considers whether "a challenge to the obstruction enhancement would have been sufficiently meritorious such that [Reaux's] counsel should have raised it on appeal." United States v. Phillips, 210 F.3d 345, 348 (5th Cir. 2000).
At sentencing, the Court found by a preponderance of the evidence that the facts supported the obstruction enhancement based on defendant's manipulation of evidence while testifying on the stand and numerous statements made on the stand that were contradicted by other evidence. While on the stand, defendant tried on a shoe associated with the crime and stated that it did not fit. Later, the prosecutor found tissue stuffed in the toe of the shoe. Defendant asserted that he knew the tissue was there but did not place it in the shoe. The Court concluded that even if the defendant had not placed the tissue in the shoe, he dishonestly tried to take advantage of it to make it appear as if the shoe did not fit. Because the Court did not premise its findings on a conclusion that Reaux placed the tissue in the shoe, Reaux's arguments that the enhancement was improper because the government failed to prove that he put the tissue in the shoe are meritless. Accordingly, the Court finds that a challenge to the obstruction enhancement would not have been sufficiently meritorious, and petitioner fails to establish that his counsel was delinquent in failing to challenge the enhancement.
See Sentencing Transcript, at pp. 3-5.
2. Trial Counsel
Petitioner avers that his trial counsel's performance fell below an objective standard of reasonableness when counsel failed to: (1) Call a fingerprint expert; (2) Properly investigate defendant's case; (3) Properly consult defendant about taking the stand; (4) Properly advise defendant on the benefits of pleading guilty as compared to proceeding to trial; (5) Object to petitioner's right to challenge the grand jury array; (6) Object to the defective indictment; and (7) Object to the alleged prosecutorial misconduct and conflict of interest of prosecution's witness. The Court notes at the outset that petitioner's trial counsel was a law professor and an experienced criminal defense attorney. The Court addresses each of petitioners allegations of ineffective assistance in turn.
a. Fingerprint Expert
Petitioner alleges that his counsel's failure to call an expert to rebut the government's fingerprint expert constitutes ineffective assistance of counsel. Counsel unsuccessfully moved to exclude the government's fingerprint expert and was therefore familiar with the reliability and relevance of such testimony. Counsel's decision not to call an expert in rebuttal was an informed strategical decision, and the Court cannot conclude that it was so ill informed as to render the trial unfair to petitioner. Petitioner fails to show that counsel's decision not to call an expert fell below an objective standard of reasonableness.
See Rec. Doc. 45, Order and Reasons dated Jul. 31, 2001.
b. Investigation of Defendant's Case
Petitioner contends that his counsel failed to properly investigate his case, and if counsel had investigated he would have discovered that the government had improperly provided benefits to one of its witnesses, Donna Davis, and improperly threatened her with prosecution. Reaux indicates that Davis testified that Reaux admitted to her that he committed the robbery. Reaux does not support his conclusory allegations about the benefits Davis received or the threats the government alleged made to her with any specific allegations. The government, on the other hand, asserts that Davis received only temporary lodging and financial assistance for food and living expenses while she was under witness protection by the United States Attorney's office due to threats that she received before she testified. The government argues that the living expenses and any leniency offered in exchange for Davis' cooperation is not improper.
Under 18 U.S.C. § 201(c)(2), the government may not directly or indirectly give, offer or promise anything of value to a witness for their testimony. Here, the government shows, and petitioner does not dispute, that Davis received lodging and living expenses because she was under witness protection. The Witness Relocation and Protection Act authorizes the provision of housing, living expenses and other services to witnesses in exchange for their agreement to cooperate and provide testimony. See 18 U.S.C. § 3521(b)(1), (d)(1)(A). Furthermore, the Fifth Circuit has stated that "this essential right on the part of the prosecutor to make promises in exchange for testimony is as old as the institution of the criminal trial." United States v. Haese, 162 F.3d 359, 367 (5th Cir. 1998) (internal quotations omitted). The Haese Court also noted that Fifth Circuit has consistently upheld government efforts to provide benefits to witnesses in exchange for their testimony. Id. at 366.
Petitioner fails to show that the government made any improper payments or promises of leniency to Davis. Because petitioner provides no indication that Davis received any improper benefits, the Court cannot deem Reaux's counsel's failure to uncover improper benefits unreasonable.
c. Defendant's Testimony
Defendant alleges that his counsel failed to consult with him about the risks associated with testifying at trial. Specifically, Reaux avers that he was unaware of the potential for a sentence enhancement based on obstruction of justice. As noted above, the Court found that the facts supported the obstruction enhancement based on defendant's manipulation of evidence while testifying on the stand and numerous statements made on the stand that were contradicted by other evidence. Thus, the sentencing enhancement was not a result of defendant's decision to testify. Rather, the enhancement was a result of defendant's manipulation of the evidence and false statements. Petitioner does not assert that he ever informed his attorney that he intended to manipulate the evidence and lie under oath, and therefore his attorney had no reason to anticipate such actions and warn his client of the associated risks. Further, petitioner is not inexperienced with the criminal justice system, and it taxes credulity to accept that petitioner did not comprehend that penalties may result from manipulating evidence and lying while testifying under oath. Accordingly, defendant's argument that his counsel was ineffective in this respect lacks merit.
See Sentencing Transcript, at pp. 3-5.
d. Guilty Plea Option
Petitioner also argues that his counsel failed to advise him on the benefits of pleading guilty over proceeding to trial. In support, petitioner cites United States v. Mohammed, 999 F. Supp. 1198 (N.D.Ill. 1998). In Mohammed, the court found that defense counsel's failure to inquire about the possibility of a plea agreement, especially in light of the defendant's allegations that he repeatedly asked his attorney about it, constituted ineffective assistance of counsel. Id. at 1200. Here, defense counsel clearly explored the possibility of a plea agreement. Indeed, Reaux notified the Court that he had decided to plead guilty and the Court scheduled his re — arraignment. The day before his re — arraignment, Reaux recanted his decision to plead guilty at a meeting with his attorney, the prosecutor, and Federal Bureau of Investigation agents. Thus, a possible plea bargain was fully explored, and defendant opted to proceed to trial. Further, petitioner never identifies a particular benefit of a guilty plea of which he was unaware. Indeed, petitioner's criminal history reveals that he had previously pleaded guilty to several other crimes and was therefore familiar with the process. Moreover, petitioner does not contend that he would have pleaded guilty had he received any additional information and therefore fails to meet the prejudice prong of the Strickland test. Accordingly, the Court rejects petitioners argument that counsel's assistance was ineffective.e. Grand Jury Array
Petitioner argues that his counsel should have objected to the deprivation of his right to challenge the grand jury array. He contends that the grand jury was not drawn from a pool that broadly represented the community. To support this contention, petitioner asserts that the grand jury contained no members between the ages of 18 and 21 years of age and no members from his neighborhood. To show that an equal protection violation has occurred in the context of grand jury selection, a defendant must show "that the procedure employed resulted in substantial underrepresentation of his race or of the identifiable group to which he belongs." Rideau v. Whitley, 237 F.3d 472, 485 (5th Cir. 2000) (internal quotation omitted) (quoting Castaneda v. Partida, 430 U.S. 482, 494 (1977)). Petitioner fails to establish that 18 — 21 year olds or people from his neighborhood constitute an "identifiable group." Because petitioner fails to show that a challenge to the grand jury array would have been successful, he fails to demonstrate that the outcome of the trial would have been different had his counsel objected to the grand jury array. Consequently, Reaux's assertion of ineffective assistance of counsel on this ground fails to meet the second prong of the Strickland test.
f. Indictment
Petitioner also asserts that his counsel failed to object to his allegedly defective indictment. Reaux argues that the indictment was defective because the armed bank robbery charge contains an enhancement for the use of a firearm, and charging him with both armed bank robbery and use of a firearm in connection with a crime of violence violates the Double Jeopardy Clause. The Fifth Circuit specifically rejected the argument that a defendant may not be sentenced under both 18 U.S.C. § 2113(a) and (d) and 18 U.S.C. § 924(c) for the same bank robbery in United States v. Holloway, 905 F.2d 893, 894 (5th Cir. 1990). The Fifth Circuit later noted, however, in United States v. Franks, 230 F.3d 811 (5th Cir. 2000), that "double counting" would occur if a defendant were sentenced under Section 924(c) for use of a firearm, and his sentence was enhanced for the use of a firearm in connection with the robbery. See Franks, 230 F.3d at 814. Here, defendant's guideline calculation for robbery reflects no enhancement for the firearm: the Pre — sentence Investigation Report states, "As the defendant was found guilty of Count 2 relative to the firearm used in this robbery, there is no further enhancement for the use of a firearm." Accordingly, Reaux's indictment does not violate the Double Jeopardy Clause. Just as petitioner fails to demonstrate that an objection to the grand jury array would have succeeded, petitioner fails to demonstrate that an objection by his counsel on this ground would have succeeded, and thus he again fails to meet the second prong of the Strickland test.g. Alleged Prosecutorial Misconduct
Petitioner asserts that his counsel improperly failed to object to misconduct by the prosecutor. Petitioner asserts prosecutorial misconduct based on his allegations that the prosecutor provided improper benefits to Davis as a witness. As discussed above, petitioner's allegations of misconduct related to any living expenses and leniency given to Davis in exchange for her testimony are meritless. Thus, an objection by his counsel on this ground would have been unsuccessful, and petitioner again fails to meet the second prong of the Strickland test.
III. Conclusion
For the foregoing reasons, the Court denies defendant's section 2255 motion to vacate, set aside, or correct the sentence.